Subscribe

Follow

Oklahoma's Courts Are at War Over Lethal-Injection Secrecy

State officials have tried to conceal basic information about the drugs used in executions, creating chaos in the legal system.

In 2005, this memo was posted next to the death chamber at the Southern Ohio Correctional Facility in Lucasville, Ohio. While Ohio has been open about drugs purchased for executions, Oklahoma and other states cloak lethal cocktails in secrecy.AP File Photo

We noticed that you have an

AD BLOCKER

ENABLED

Please consider disabling it
for our site, or supporting our
work in one of these ways

Update, 5:30 pm: By a 5 to 4 vote, the Oklahoma Supreme Court issued a new stay, halting the scheduled executions pending resolution of the injection-secrecy issues. It is unclear whether the Court of Criminal Appeals will honor this stay, although court watchers in Oklahoma say that will likely be the case.

How chaotic has the fight over lethal injection secrecy become? The top two courts in Oklahoma today are in conflict with one another over whether two condemned men should be executed there this month before state officials have to disclose basic information about the drugs they intend to use to carry out the executions. It is conceivable that both men will be executed, even though the Oklahoma Supreme Court has declared that the legal issues the men have raised about injection secrecy ought to be fully adjudicated before their deaths.

There is a dispute between the courts over whether the issues raised by the prisoners are "civil" or "criminal" in nature. It's like a skit from Alphonse and Gaston.

But lawyers for both men argue that Oklahoma has violated both state and federal law by refusing to disclose where it obtained the drugs to be used on Lockett and Warner, how the drugs were manufactured, what their efficacy may be, and other basic information necessary to determine whether the upcoming executions would violate the "cruel and unusual" punishment clause of the Eighth Amendment. It is an argument being made by other attorneys in other death penalty states that are suddenly scrambling to find new execution drugs.

The Oklahoma Supreme Court, which handles civil cases, seems to believe a stay of execution is necessary to look further into the issues the men have raised. But that court and the Oklahoma Court of Criminal Appeals, which handles criminal cases, can't agree about which of them has the power to enter a stay. The Supreme Court says it's the OCCA. The OCCA says it can't and won't enter a stay because the prisoners have not filed a substantive claim there. And the prisoners say they can't challenge the protocol without the drug information they seek.

So now there is a dispute between the courts over whether the issues raised by the prisoners are "civil" or "criminal" in nature and, if they are "civil" whether the executions should be delayed. It's like a skit from Alphonse and Gaston. Only Texas has such a bifurcated appellate system that one high court handles civil cases and another handles criminal cases. But even in Texas—which, like Oklahoma, now conceals material information about injection drugs—the courts have not been as divided as they have in this Oklahoma case.

* * *

The problem at the root of the Oklahoma conflict is the same problem that vexes officials in other states still actively pursuing the death penalty. In 2011, the manufacturers of sodium thiopental, the key ingredient in the lethal "cocktail" states then were using, announced they would stop making the drug due to objections about its use for capital punishment. Since then, state officials have struggled to come up with new combinations of drugs that can kill in a way that is arguably "humane" under the Eighth Amendment.

Related Story

In many instances, since supplies of sodium thiopental ran out, state officials have had to rely upon "compounding pharmacies" to procure the drugs to be used for lethal injections. But the products produced by these pharmacies have long been considered unsafe and controversial—so much so that the Obama Administration last November signed the Drug Quality and Security Act, federal legislation designed to regulate the industry.

The use of these murky pharmacies has raised legitimate questions that did not need to be considered when a respected drug manufacturer was doling out lethal doses of sodium thiopental. What lawyers for Lockett and Warner want to know—indeed what attorneys for hundreds of death row inmates in Oklahoma, Texas, Florida, Missouri, and Louisiana, Georgia want to know—is whether the new cocktails to be used upon their clients are "safe"—that is, whether they will inflict undue pain upon the dying.

It seems like an absurd concern. The whole point of the death penalty, its supporters say, is to inflict some measure of pain upon the condemned as death comes. But there is a point along the spectrum of pain where an otherwise lawful execution becomes "cruel," and thus unlawful, under the Constitution. What defense attorneys now argue is that they cannot even begin to evaluate whether the state will encroach upon that line if they have no idea about the origins of the drugs to be used. And right now, in Oklahoma, they don't.

Over the past few years, Oklahoma's relentless drive to keep executing inmates has produced a flurry of changes to the state's injection protocols. In November 2011, lawmakers changed state law to add a secrecy provision—to keep hidden information about the origins of injection drugs. In January 2014, the state executed an inmate named Michael Wilson, who said as he died, "I feel my whole body burning." One defense expert cited in court papers says this may be because Oklahoma was using a contaminated compounded drug.

* * *

Today, Oklahoma is trying something new—and largely untested. It now says it wants to execute Lockett and Warner, and perhaps future death row inmates, using a three-drug combination of midazolam, pancuronium bromide, and potassium chloride. State officials notified defense attorneys that this brew would be used against their clients three weeks ago—less than one month before the scheduled executions and just a few days after the state's injection secrecy law was declared unconstitutional.

Oklahoma has never before used midazolam in an execution. There has to be a first for everything, right? Except that no other state that has ever used midazolam to execute a man has ever used it in the dosage now suggested by Oklahoma. So not only are the origins and efficacy of these drugs unknown but there is no record suggesting one way or the other whether the combination Oklahoma plans for Lockett and Warner will inflict unconstitutional pain.

The whole point of the death penalty, its supporters say, is to inflict some measure of pain. But there is a point at which an otherwise lawful execution becomes "cruel," and thus unlawful.

To the Oklahoma Supreme Court these issues—essentially new to death penalty law—warrant further review. In late March, for example, a state trial judge ruled that the state's injection secrecy law was unconstitutional—"I do not think this is even a close call," the judge declared—and that ruling still has not been fully vetted by either of the two appellate courts. How could Oklahoma execute two men under a law already declared unconstitutional before judicial review is completed? That's the essence of the argument this court is making.

To the Oklahoma Court of Criminal Appeals, the issue is equally clear. In an order published late Friday, a divided court concluded that it does not have to issue a stay of execution just because the Oklahoma Supreme Court has concluded that there are "civil" issues that ought to be resolved before any more executions take place.

This conflict, it appears, falls in a crack between the two courts. So the Oklahoma Supreme Court is waiting to hear the appeal of the ruling that declared the state's secrecy law unconstitutional. And the Court of Criminal Appeals is refusing to stay the pending executions. The men thus evidently have a right to have their case heard but no remedy to spare them from death before it is heard. The United States Supreme Court, to date, has remained virtually silent through this new period of chaos over lethal injection secrecy, allowing one condemned man after another to be executed without intervening.

* * *

In a concurrence to Friday's ruling, Court of Criminal Appeals Judge Gary Lumpkin, a former Marine and prosecutor, accused the defense lawyers of seeking to "take advantage of our bifurcated system of justice" by raising their claims in "civil" court instead of in criminal court where they belong. But that begs the question, still unresolved in Oklahoma or elsewhere, of whether these new and numerous injection secrecy matters are "criminal" or "civil" in nature or (as I suspect) some combination of both.

What Judge Lumpkin is doing, actually, is setting a trap. For as soon as the lawyers for Lockett and Warner file their claims as "criminal" matters, those claims will be denied in the state's criminal courts. You cannot sustain an Eighth Amendment claim here unless you can establish that the drugs to be used will cause pain to the condemned, these judges will conclude—and you cannot prove that they’ll cause pain because you have no right to demand that state officials share information about the drugs with you.

Oklahoma law is Oklahoma law and the state is entitled to foster and tolerate the sort of judicial dissonance we see here. The truth is that both courts make reasonable arguments. Death penalty cases, and the means of execution, are inherently "criminal" proceedings. But inasmuch as the defense lawyers here are not challenging the convictions and sentences of their clients, they are making arguments that traditionally have sounded in "civil" courts. The conflict today is about secrecy and transparency—not guilt or innocence or crime or punishment.

And it's also about the nature of the judicial process in capital cases. Both high appellate courts in Oklahoma ought to be required to agree before an execution there can proceed. Either court ought to be willing to ensure that the other court is satisfied that no state constitutional violation will occur. But if the Court of Criminal Appeals has its way, these two men will be executed before the state Supreme Court even has all of the briefs filed in their appeals. That surely can't be what Oklahoma intended by splitting its courts.

And that is why no case better illustrates the need for the justices in Washington to intervene in this burgeoning conflict. Not only are different rules now applied in different states to core Eighth Amendment principles, but now we have a state that cannot agree within its own borders about the nature of these new challenges. The United States Supreme Court must not permit these executions to proceed, so long as the state Supreme Court believes the men have raised legitimate issues about the means and manner of the death that awaits them.

Most Popular

Two hundred fifty years of slavery. Ninety years of Jim Crow. Sixty years of separate but equal. Thirty-five years of racist housing policy. Until we reckon with our compounding moral debts, America will never be whole.

And if thy brother, a Hebrew man, or a Hebrew woman, be sold unto thee, and serve thee six years; then in the seventh year thou shalt let him go free from thee. And when thou sendest him out free from thee, thou shalt not let him go away empty: thou shalt furnish him liberally out of thy flock, and out of thy floor, and out of thy winepress: of that wherewith the LORD thy God hath blessed thee thou shalt give unto him. And thou shalt remember that thou wast a bondman in the land of Egypt, and the LORD thy God redeemed thee: therefore I command thee this thing today.

— Deuteronomy 15: 12–15

Besides the crime which consists in violating the law, and varying from the right rule of reason, whereby a man so far becomes degenerate, and declares himself to quit the principles of human nature, and to be a noxious creature, there is commonly injury done to some person or other, and some other man receives damage by his transgression: in which case he who hath received any damage, has, besides the right of punishment common to him with other men, a particular right to seek reparation.

Writing used to be a solitary profession. How did it become so interminably social?

Whether we’re behind the podium or awaiting our turn, numbing our bottoms on the chill of metal foldout chairs or trying to work some life into our terror-stricken tongues, we introverts feel the pain of the public performance. This is because there are requirements to being a writer. Other than being a writer, I mean. Firstly, there’s the need to become part of the writing “community”, which compels every writer who craves self respect and success to attend community events, help to organize them, buzz over them, and—despite blitzed nerves and staggering bowels—present and perform at them. We get through it. We bully ourselves into it. We dose ourselves with beta blockers. We drink. We become our own worst enemies for a night of validation and participation.

Even when a dentist kills an adored lion, and everyone is furious, there’s loftier righteousness to be had.

Now is the point in the story of Cecil the lion—amid non-stop news coverage and passionate social-media advocacy—when people get tired of hearing about Cecil the lion. Even if they hesitate to say it.

But Cecil fatigue is only going to get worse. On Friday morning, Zimbabwe’s environment minister, Oppah Muchinguri, called for the extradition of the man who killed him, the Minnesota dentist Walter Palmer. Muchinguri would like Palmer to be “held accountable for his illegal action”—paying a reported $50,000 to kill Cecil with an arrow after luring him away from protected land. And she’s far from alone in demanding accountability. This week, the Internet has served as a bastion of judgment and vigilante justice—just like usual, except that this was a perfect storm directed at a single person. It might be called an outrage singularity.

Forget credit hours—in a quest to cut costs, universities are simply asking students to prove their mastery of a subject.

MANCHESTER, Mich.—Had Daniella Kippnick followed in the footsteps of the hundreds of millions of students who have earned university degrees in the past millennium, she might be slumping in a lecture hall somewhere while a professor droned. But Kippnick has no course lectures. She has no courses to attend at all. No classroom, no college quad, no grades. Her university has no deadlines or tenure-track professors.

Instead, Kippnick makes her way through different subject matters on the way to a bachelor’s in accounting. When she feels she’s mastered a certain subject, she takes a test at home, where a proctor watches her from afar by monitoring her computer and watching her over a video feed. If she proves she’s competent—by getting the equivalent of a B—she passes and moves on to the next subject.

Most of the big names in futurism are men. What does that mean for the direction we’re all headed?

In the future, everyone’s going to have a robot assistant. That’s the story, at least. And as part of that long-running narrative, Facebook just launched its virtual assistant. They’re calling it Moneypenny—the secretary from the James Bond Films. Which means the symbol of our march forward, once again, ends up being a nod back. In this case, Moneypenny is a send-up to an age when Bond’s womanizing was a symbol of manliness and many women were, no matter what they wanted to be doing, secretaries.

Why can’t people imagine a future without falling into the sexist past? Why does the road ahead keep leading us back to a place that looks like the Tomorrowland of the 1950s? Well, when it comes to Moneypenny, here’s a relevant datapoint: More than two thirds of Facebook employees are men. That’s a ratio reflected among another key group: futurists.

During the multi-country press tour for Mission Impossible: Rogue Nation, not even Jon Stewart has dared ask Tom Cruise about Scientology.

During the media blitz for Mission Impossible: Rogue Nation over the past two weeks, Tom Cruise has seemingly been everywhere. In London, he participated in a live interview at the British Film Institute with the presenter Alex Zane, the movie’s director, Christopher McQuarrie, and a handful of his fellow cast members. In New York, he faced off with Jimmy Fallon in a lip-sync battle on The Tonight Show and attended the Monday night premiere in Times Square. And, on Tuesday afternoon, the actor recorded an appearance on The Daily Show With Jon Stewart, where he discussed his exercise regimen, the importance of a healthy diet, and how he still has all his own hair at 53.

Stewart, who during his career has won two Peabody Awards for public service and the Orwell Award for “distinguished contribution to honesty and clarity in public language,” represented the most challenging interviewer Cruise has faced on the tour, during a challenging year for the actor. In April, HBO broadcast Alex Gibney’s documentary Going Clear, a film based on the book of the same title by Lawrence Wright exploring the Church of Scientology, of which Cruise is a high-profile member. The movie alleges, among other things, that the actor personally profited from slave labor (church members who were paid 40 cents an hour to outfit the star’s airplane hangar and motorcycle), and that his former girlfriend, the actress Nazanin Boniadi, was punished by the Church by being forced to do menial work after telling a friend about her relationship troubles with Cruise. For Cruise “not to address the allegations of abuse,” Gibney said in January, “seems to me palpably irresponsible.” But in The Daily Show interview, as with all of Cruise’s other appearances, Scientology wasn’t mentioned.

The Wall Street Journal’s eyebrow-raising story of how the presidential candidate and her husband accepted cash from UBS without any regard for the appearance of impropriety that it created.

The Swiss bank UBS is one of the biggest, most powerful financial institutions in the world. As secretary of state, Hillary Clinton intervened to help it out with the IRS. And after that, the Swiss bank paid Bill Clinton $1.5 million for speaking gigs. TheWall Street Journal reported all that and more Thursday in an article that highlights huge conflicts of interest that the Clintons have created in the recent past.

The piece begins by detailing how Clinton helped the global bank.

“A few weeks after Hillary Clinton was sworn in as secretary of state in early 2009, she was summoned to Geneva by her Swiss counterpart to discuss an urgent matter. The Internal Revenue Service was suing UBS AG to get the identities of Americans with secret accounts,” the newspaper reports. “If the case proceeded, Switzerland’s largest bank would face an impossible choice: Violate Swiss secrecy laws by handing over the names, or refuse and face criminal charges in U.S. federal court. Within months, Mrs. Clinton announced a tentative legal settlement—an unusual intervention by the top U.S. diplomat. UBS ultimately turned over information on 4,450 accounts, a fraction of the 52,000 sought by the IRS.”

An attack on an American-funded military group epitomizes the Obama Administration’s logistical and strategic failures in the war-torn country.

Last week, the U.S. finally received some good news in Syria:.After months of prevarication, Turkey announced that the American military could launch airstrikes against Islamic State positions in Syria from its base in Incirlik. The development signaled that Turkey, a regional power, had at last agreed to join the fight against ISIS.

The announcement provided a dose of optimism in a conflict that has, in the last four years, killed over 200,000 and displaced millions more. Days later, however, the positive momentum screeched to a halt. Earlier this week, fighters from the al-Nusra Front, an Islamist group aligned with al-Qaeda, reportedly captured the commander of Division 30, a Syrian militia that receives U.S. funding and logistical support, in the countryside north of Aleppo. On Friday, the offensive escalated: Al-Nusra fighters attacked Division 30 headquarters, killing five and capturing others. According to Agence France Presse, the purpose of the attack was to obtain sophisticated weapons provided by the Americans.

Members of Colombia's younger generation say they “will not torture for tradition.”

MEDELLÍN, Colombia—On a scorching Saturday in February, hundreds of young men and women in Medellín stripped down to their swimsuit bottoms, slathered themselves in black and red paint, and sprawled out on the hot cement in Los Deseos Park in the north of the city. From my vantage point on the roof of a nearby building, the crowd of seminude protesters formed the shape of a bleeding bull—a vivid statement against the centuries-old culture of bullfighting in Colombia.

It wasn’t long ago that Colombia was among the world’s most important countries for bullfighting, due to the quality of its bulls and its large number of matadors. In his 1989 book Colombia: Tierra de Toros (“Colombia: Land of Bulls”), Alberto Lopera chronicled the maturation of the sport that Spanish conquistadors had introduced to South America in the 16th century, from its days as an unorganized brouhaha of bulls and booze in colonial plazas to a more traditional Spanish-style spectacle whose fans filled bullfighting rings across the country.

The Islamic State is no mere collection of psychopaths. It is a religious group with carefully considered beliefs, among them that it is a key agent of the coming apocalypse. Here’s what that means for its strategy—and for how to stop it.

What is the Islamic State?

Where did it come from, and what are its intentions? The simplicity of these questions can be deceiving, and few Western leaders seem to know the answers. In December, The New York Times published confidential comments by Major General Michael K. Nagata, the Special Operations commander for the United States in the Middle East, admitting that he had hardly begun figuring out the Islamic State’s appeal. “We have not defeated the idea,” he said. “We do not even understand the idea.” In the past year, President Obama has referred to the Islamic State, variously, as “not Islamic” and as al-Qaeda’s “jayvee team,” statements that reflected confusion about the group, and may have contributed to significant strategic errors.